855 F.

2d 1477

David Earle JOHNSON, Petitioner-Appellee,

v.
Chase RIVELAND, Respondent-Appellant.
No. 85-2817.

United States Court of Appeals,

Tenth Circuit.
Sept. 2, 1988.

Robert M. Petrusak, Asst. Atty. Gen. of Colorado, Denver, Col. (Duane

Woodard, Atty. Gen. of Colorado, Charles B. Howe, Deputy Atty. Gen.,
Richard H. Forman, Sol. Gen., Eric Perryman, Asst. Atty. Gen., Denver,
Colo. were also on the Brief), for respondent-appellant.
William R. Durland, Wallingford, Pa., for petitioner-appellee.
Before HOLLOWAY, Chief Judge, and McWILLIAMS and BALDOCK,
Circuit Judges.
HOLLOWAY, Chief Judge.

This appeal involves a petition for habeas corpus brought by a Colorado

prisoner, David Earle Johnson. In state court, Johnson was convicted on three
counts of aggravated robbery and sentenced to three consecutive terms of 13-40
years. In his habeas petition, Johnson claimed that the denial of credit for time
spent in pretrial confinement, with respect to both the maximum and minimum
terms imposed, violated the Equal Protection Clause of the Fourteenth
Amendment. While the petition was pending in the federal district court, the
State granted Johnson parole on September 27, 1985. Nonetheless, the district
court granted relief, holding that Johnson was entitled to credit for time spent in
pretrial confinement against both the maximum and minimum terms imposed.
Johnson v. Riveland, 620 F.Supp. 1425, 1426 (D.Colo.1985).

Even though Johnson had already been paroled prior to the district court's
ruling, the State does not press here an argument that the case was moot or urge
a disposition here on this ground. The petitioner does not deal with mootness on

appeal by any detailed analysis, although he urges a decision on the merits here
in his favor.1 Nonetheless, we have considered the issue of mootness on our
own motion and conclude that the case is moot. In regard to the challenge to
the denial of credit against the minimum term which determined the initial
parole date, this issue became moot when Johnson was paroled. And since the
State had already granted presentence confinement credit against the maximum
term before the decision of the district court, and does not challenge the merits
of such credit on appeal, this also is not an issue at controversy. Accordingly,
we vacate the district court's opinion and judgment and remand with directions
to dismiss for mootness.
3* The factual background
4

On April 11, 1974, Johnson was arrested on three counts of aggravated

robbery. Unable to post bond set at $6500, Johnson spent 463 days in a county
penal facility prior to trial. Subsequently, Johnson was convicted on all three
counts of aggravated robbery, which were punishable by imprisonment for 5-40
years. Colo.Rev.Stat. Secs. 18-1-105, 18-4-302(3) (1978). On July 17, 1975,
the trial court sentenced Johnson to three consecutive terms of imprisonment
for 13-40 years. On February 29, 1980, the Governor of Colorado commuted
Johnson's sentence by reducing the minimum term to 11 years on each of the
three counts. On June 10, 1982, the Governor again commuted Johnson's
sentence, reducing the minimum term to 7 years on each of the three counts.2

Johnson then filed an application for postconviction relief in state court,

requesting credit for the time he had spent in pretrial confinement. The
Colorado district court granted relief, ordering the State Department of
Corrections to credit Johnson for 463 days against both the minimum and
maximum terms. Although the Department of Corrections granted Johnson full
credit against the maximum term, it refused to give any credit with respect to
the minimum term. The state district court then issued a writ of mandamus,
ordering the Department of Corrections to apply the credit against both the
minimum and maximum sentences. The Colorado Court of Appeals reversed,
holding that the district court lacked jurisdiction to modify the sentence after it
had been commuted by the Governor. The Colorado Supreme Court denied
certiorari.

On January 21, 1985, Johnson filed his habeas petition in the United States
District Court for the District of Colorado. As noted, while that petition was
pending in the district court, Johnson was released on parole. Subsequently the
district court granted habeas relief on November 21, 1985, holding that the
Equal Protection Clause entitled Johnson to credit on both the minimum and

maximum terms. The State of Colorado appealed. On appeal, the State has
conceded that Johnson is entitled to credit against the maximum term, but
argues that this right does not apply to the minimum term.
II
Mootness
7

While the parties did not suggest mootness in the district court or on this
appeal, "it has long been recognized that a federal court must, sua sponte,
satisfy itself of its power to adjudicate in every case and at every stage of the
proceedings and the court is not bound by the acts or pleadings of the parties."
Tafoya v. U.S. Department of Justice, 748 F.2d 1389, 1390 (10th Cir.1984).
"The rule in federal cases is that an actual controversy must be extant at all
stages of review, not merely at the time the complaint is filed." Steffel v.
Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 1216 n. 10, 39 L.Ed.2d 505
(1974). Further, we have noted:

A federal court's inability "to review moot cases derives from the requirement
of Article III of the Constitution under which the exercise of judicial power
depends upon the existence of a case or controversy." Liner v. Jafco, Inc., 375
U.S. 301, 306 n. 3 [84 S.Ct. 391, 394 n. 3, 11 L.Ed.2d 347] (1964).... "[F]ederal
courts are without power to decide questions that cannot affect the rights of
litigants in the case before them." North Carolina v. Rice, 404 U.S. 244, 246
[92 S.Ct. 402, 404, 30 L.Ed.2d 413] (1971) (per curiam)....

Tosco Corp. v. Hodel, 804 F.2d 590, 591 (10th Cir.1986).

10

Johnson urges the court to recognize a federal constitutional right that under
equal protection principles, he is entitled to credit for presentence confinement
to reduce both his minimum and maximum sentence. As a matter of either state
or federal law, this is an issue of public interest with regard to discrimination
against indigent defendants. See Griess v. State of Colorado, 841 F.2d 1042,
1048 (10th Cir.1988). But despite significant public interest, we cannot ignore
the requirements of Article III under which the exercise of judicial power
depends upon the existence of a case or controversy. DeFunis v. Odegaard, 416
U.S. 312, 316, 94 S.Ct. 1704, 1705-06, 40 L.Ed.2d 164 (1974). And "the
question of mootness is a federal one which a federal court must resolve before
it assumes jurisdiction." Id. (quoting North Carolina v. Rice, 404 U.S. at 246,
92 S.Ct. at 404)).

11

Consequently, we will consider the issue of mootness even though neither party

has challenged the district court's power to rule. We turn first to the mootness
question with respect to Johnson's minimum sentence of thirteen years on each
count.
* Minimum sentence
12
13

As noted, the Governor of Colorado commuted Johnson's sentence in 1980 and

1982, effectively reducing the minimum sentence to seven years on each count.
As a result, Johnson became eligible for parole and was, in fact, granted parole
on September 27, 1985.3 We think these circumstances, present before the
ruling of the district judge was made, rendered moot Johnson's claim regarding
credit against the minimum sentence.

14

Under Colorado law, the only significance of a minimum prison term is the fact
that the prisoner then becomes eligible for parole. Colo.Rev.Stat. Secs. 17-2201(4)(a), 17-2-204(1), Sec. 17-22.5-104(1) (1986); see Espinoza v. Tinsley,
159 Colo. 62, 409 P.2d 835, 838 (1966). As a result, the only effect of the
district court's award of credit against the minimum term would be to expedite
Johnson's eligibility for parole by 463 days. As noted, however, Johnson had
already received parole before the district court's decision. Consequently, once
Johnson was granted parole, the issue of his entitlement to credit against the
minimum term was no longer capable of judicial resolution. Vandenberg v.
Rodgers, 801 F.2d 377, 378 (10th Cir.1986); Corbett v. Luther, 778 F.2d 950,
953 (2d Cir.1985); see also United States ex rel Graham v. United States Parole
Commission, 732 F.2d 849, 850 (11th Cir.1984) (habeas challenge to validity
of parole regulations is moot because of petitioner's release on parole while
appeal was pending); Granville v. United States, 613 F.2d 125, 126 (5th
Cir.1980) (dispute relating to previous denial of parole is moot as a result of
habeas petitioner's release on parole while the appeal was pending); Brady v.
U.S. Parole Commission, 600 F.2d 234, 236 & n. 2 (9th Cir.1979) (same);
Pinnon v. Ciccone, 611 F.2d 252, 253 (8th Cir.1979) (appeal is moot as a result
of Parole Commission's acceleration of habeas petitioner's presumptive parole
date after district court's decision).

15

Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), and
its progeny are not to the contrary. In Carafas, a habeas petitioner's sentence
expired and he was released before a ruling by the Supreme Court.
Nevertheless, the Supreme Court granted certiorari and held that expiration of
the sentence did not terminate federal habeas jurisdiction, stating:

16

It is clear that petitioner's cause is not moot. In consequence of his conviction,

he cannot engage in certain businesses; he cannot serve as an official of a labor

union for a specified period of time; he cannot vote in any election held in New
York State; he cannot serve as a juror. Because of these "disabilities or burdens
[which] may flow from" petitioner's conviction, he has "a substantial stake in
the judgment" of conviction which survives the satisfaction of the sentence
imposed on him. On account of these "collateral consequences," the case is not
moot.
17

Id. at 237-38, 88 S.Ct. at 1559 (quoting Fiswick v. United States, 329 U.S. 211,
222, 67 S.Ct. 224, 230, 91 L.Ed. 196 (1946)) (footnotes omitted).

18

The Court limited the Carafas doctrine in Lane v. Williams, 455 U.S. 624, 102
S.Ct. 1322, 71 L.Ed.2d 508 (1982). In Lane, two defendants pleaded guilty to
burglary in state court. Under state law, this offense was punishable by
imprisonment for an indeterminate number of years and a mandatory three year
parole term. Both defendants served their sentences and were released on
parole. Subsequently, however, they were rearrested and returned to prison as
parole violators. On habeas, they claimed that the trial court violated the Due
Process Clause of the Fourteenth Amendment by failing to inform them of the
mandatory parole term before accepting their guilty pleas. The district court
granted relief and the Seventh Circuit affirmed.

19

The Supreme Court vacated the Seventh Circuit's decision and held that the
claims were moot as a result of the expiration of the mandatory parole period
after the district court's decision. The Court noted that the petitioners were only
challenging their sentences, and not their convictions, stating:

20 respondents elected only to attack their sentences, and since those sentences
Since
expired during the course of these proceedings, this case is moot. "Nullification of a
conviction may have important benefits for a defendant ... but urging in a habeas
corpus proceeding the correction of a sentence already served is another matter."
21

Id. at 631, 102 S.Ct. at 1327 (quoting North Carolina v. Rice, 404 U.S. 244,
248, 92 S.Ct. 402, 405, 30 L.Ed.2d 413 (1971)).

22

We think Lane dictated dismissal here of Johnson's claim regarding credit

against the minimum sentence. Johnson is not challenging his convictions or
sentence, but only the way that his minimum sentence was computed. See
Illsley v. United States Parole and Probation Department, 636 F.2d 1, 3 (1st
Cir.1980), cert. denied, 450 U.S. 1032, 101 S.Ct. 1744, 68 L.Ed.2d 228 (1981);
Brady v. U.S. Parole Commission, 600 F.2d at 236 & n. 2; cf. McKinney v.
Taylor, 358 F.2d 689, 690 (10th Cir.1966) ("good time [credit] does not reduce

the period of the original sentence but instead determines how much of the
sentence must be spent within the confines of the prison"). Johnson has already
served the minimum sentence as commuted and has not shown any direct or
collateral consequences that will survive his release on parole.4 See
Vandenberg v. Rodgers, 801 F.2d at 378; United States ex rel Graham v.
United States Parole Commission, 732 F.2d at 850; see also Schlang v. Heard,
691 F.2d 796, 799 (5th Cir.1982), cert. denied 461 U.S. 951, 103 S.Ct. 2419, 77
L.Ed.2d 1310 (1983) (habeas petitioner's claim that he was erroneously
required to "work off" court costs by remaining in jail two extra days is moot as
a result of his subsequent release, since he "allege[d] no collateral consequences
of the extra two days of jail time"), appeal dismissed and cert. denied, 461 U.S.
951, 103 S.Ct. 2419, 77 L.Ed.2d 1310 (1983).
23

Johnson's claim for relief does not come within the exceptions to the mootness
doctrine. He is not challenging the underlying conviction or sentence, which
even if completely served, imposes collateral legal consequences and
disabilities. See Lane v. Williams, 455 U.S. at 631-32, 102 S.Ct. at 1326-27;
Carafas, 391 U.S. at 237-38, 88 S.Ct. at 1559-60; Sibron v. New York, 392
U.S. 40, 57-58, 88 S.Ct. 1889, 1899-1900, 20 L.Ed.2d 917 (1968) (citing St.
Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943)).
Additionally, Johnson's claim for post-parole credit to be applied toward his
minimum sentence does not fit within the exceptional cases which are not class
actions but are "capable of repetition, yet evading review."5 Johnson has
obtained parole and will not face again the issue of serving the minimum
sentence which is determinative of an initial parole date.

24

Apparently, Johnson's contention is that he would obtain a new presumptive

parole date if his parole is revoked, and that the 463 day credit should be
applied against this potential reparole date. Substantial reasons weigh against
any grant of such relief.

25

We are not persuaded there is any legitimate interest or necessity in making a

first impression determination that a paroled offender is entitled to credit
against a term resulting from a parole revocation. We have already rejected
such a "credit card" theory with regard to credit which may be banked against
future or unperpetrated criminal offenses when an offender establishes
entitlement to a credit arising from a prior conviction. See Bowen v. Murphy,
693 F.2d 104, 105 (10th Cir.1982) (giving convicted individuals a line of credit
for future crimes gives a sense of immunity and an incentive to engage in
criminal conduct); see also Hyland v. Department of Correction, 445 F.2d 867,
868 (1st Cir.1971) (a floating future credit to be applied to a future sentence
resulting from a subsequent crime would mean the offender has "in effect a

license to commit an offense up to the amount of credit he has on the books.");

Bryant v. Warden, 776 F.2d 394, 396 (2d Cir.1985), cert. denied, 475 U.S.
1023, 106 S.Ct. 1216, 89 L.Ed.2d 327 (1986) ("Like criminal activities, parole
violations should be discouraged; allowing an individual to bank time
erroneously served for a parole violation, to the contrary, would encourage
such infractions.") 6
26

Finally, it is clear that Johnson has received the benefit which a credit for
presentence confinement entitles him to have as an offender serving three
consecutive sentences. "When consecutive sentences are imposed, crediting the
period of presentence confinement against one of the sentences will assure the
defendant full credit against the total term of imprisonment." Schubert v.
People, 698 P.2d 788, 795 (Colo.1985); see also People v. Etts, 725 P.2d 73, 74
(Colo.App.1986); People v. Middleton, 704 P.2d 326, 327 (Colo.App.1985);
People v. Nealous, 703 P.2d 624, 625 (Colo.App.1985). The prohibition by the
Colorado courts against duplicate credit being applied to each of the
consecutive sentences, while allowing credit against each concurrent sentence,
achieves the purpose of assuring that the defendant will receive credit for the
full period of presentence confinement against the total term of imprisonment.
Schubert, 698 P.2d at 795.

27

We therefore conclude that the district court erred in deciding the merits of the
moot claim relating to credit for pretrial confinement against the minimum
sentence.

B
Maximum sentence
28

With regard to the maximum sentence, neither the facts nor the arguments
offered by Johnson demonstrate a live controversy necessitating a decision on
the merits. The State has granted credit for the presentence confinement against
the maximum term to be served and does not raise any issue on appeal
concerning that credit. Opening Brief of Appellant at 4; see note 1, supra.

29

Johnson maintained at argument that by vacating the federal district court's

order which mandated credit on both the minimum and maximum sentence, we
would leave the State free rein to revoke the credit already granted against the
maximum sentence. This theoretical possibility must be weighed against the
explicit concessions made by the State.7

30

The Supreme Court addressed a similar situation in Defunis and found the

State's acknowledgement and conduct sufficed as the basis for the Court's
determination that the appellant had obtained relief. DeFunis sought admission
to a state's law school and was granted admission and enrolled during the
pendency of the appeal. DeFunis, 416 U.S. at 315-17, 94 S.Ct. at 1705-06. The
Court stated:
31 respondents, through their counsel, the Attorney General of the State, have
The
professionally represented that in no event will the status of DeFunis now be
affected by any view this Court might express on the merits of this controversy. And
it has been the settled practice of the Court, in contexts no less significant, fully to
accept representations such as these as parameters for decision.
32

Id. at 317, 94 S.Ct. at 1706 (citations omitted). Here the Attorney General of
Colorado has made such representations on behalf of the State.

33

The Court noted that mootness in DeFunis depended not on the voluntary
cessation of the conduct which was the subject of the litigation, but the fact that
DeFunis had obtained his desired relief, gaining admission, and had achieved
the consequence, the opportunity to complete law school. Id. at 318, 94 S.Ct. at
1706-07. Similarly, Johnson has obtained both the minimum term requisite for
being paroled and the consequential opportunity to complete his sentence as a
parolee rather than as an imprisoned offender.

34

We have no reason to doubt the State's profession that Johnson's entitlement to

presentence credit against the maximum sentence will be respected. Johnson
does not claim any impropriety in the manner in which this credit has been
calculated. Lacking any basis for assuming the State will arbitrarily revoke that
which has been granted and represented to this court as an unchallenged issue,
we find no live controversy warranting a decision on the merits. Any future
relitigation of this issue between the parties is unhindered if we vacate the
district court's judgment and remand with directions to dismiss for mootness.
United States v. Munsingwear, 340 U.S. 36, 39-40, 71 S.Ct. 104, 106-07, 95
L.Ed. 36 (1951).

III
35

Accordingly the district court's opinion and judgment are VACATED and the
cause is REMANDED with directions to dismiss for mootness.

The State's brief says that when the district court ruled, because petitioner "had

already been granted presentence confinement credit against the maximum term
of his sentence, the district court's order directing respondent to grant
presentence confinement credit against the maximum term of his sentence was
superflous. Respondent does not challenge that portion of the district court's
order." Opening Brief of Respondent at 4. (emphasis added). The State's brief
does further state that Respondent does challenge the portion of the district
court's order directing Respondent to grant petitioner presentence confinement
credit against the minimum term of his sentence and urges reversal of that part
of the order. Id. at 4-5
Petitioner states that as a result of seven court appearances over some three and
one-half years, "Petitioner now finds himself finally paroled 463 days later than
the law allowed. He now has no remedy. Petitioner, nevertheless, pursues this
case originally motivated by a hope for an earlier parole because the decision
still bears upon him technically as he remains under the control of the
Department of Corrections, and further, because in a more fundamental
consideration of fairness, a favorable decision may benefit many others who
have been subject to a denial of fundamental fairness while remaining
incarcerated." Brief for Petitioner-Appellee at 12-13. We note, however, that
this is not a class action. Preiser v. Newkirk, 422 U.S. 395, 402, 95 S.Ct. 2330,
2334-35, 45 L.Ed.2d 272 (1975).
2

In both commutations, the Governor specifically stated that the maximum

sentence was to remain the same

Without credit against the minimum term, Johnson became eligible for parole
on November 11, 1985. With the credit, he became eligible for parole on about
August 5, 1984. Petition for Habeas Corpus at 3. Though Johnson has claimed
that he was paroled "463 days later than the law allowed", see note 1 supra, the
date of parole does not collaborate that chronological assertion

At oral argument before us Johnson's counsel argued that the case was not
moot because the denial of credit could prolong Johnson's imprisonment if his
parole was revoked. Similarly, counsel argued in opposing the State's motion
for a stay in the district court: "The matter is not moot and his future may still
be affected adversely depending upon how the law presently views his
minimum and maximum sentences, or in the event of a revocation of parole and
a hearing thereon." Motion to Deny Stay at 1
We disagree. Even if the State revoked Johnson's parole, the only effect would
be reimprisonment for the duration of his original sentence. Colo.Rev.Stat. Sec.
17-22.5-203(2) (1986). If such reimprisonment occurred the original minimum
sentence, which is involved here, would no longer be of any significance. It is

true that Johnson might have been paroled earlier if he had received the desired
credit of 463 days against the minimum sentence. However, if parole is
revoked, the time spent on parole would have no bearing on the time Johnson
would ultimately have to serve on his original sentence. Colo.Rev.Stat. Secs.
17-2-207(4), 17-22.5-203(1) (1986); see People v. Emig, 676 P.2d 1156, 1161
(Colo.1984).
5

In the absence of a class action, the court can proceed if two elements are
combined:
(1) the challenged action was in its duration too short to be fully litigated prior
to its cessation or expiration; and
(2) there was a reasonable expectation that the same complaining party would
be subjected to the same action again.
Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350
(1975); see also Murphy v. Hunt, 455 U.S. 478, 482-83, 102 S.Ct. 1181, 118384, 71 L.Ed.2d 353 (1982). The "capable of repetition, yet evading review"
doctrine is limited to the situation where these two elements are combined.
Weinstein, 423 U.S. at 149, 96 S.Ct. at 349; Murphy, 455 U.S. at 482-83, 102
S.Ct. at 1183-84. There must be a "reasonable expectation" or a "demonstrated
probability" that the same controversy will recur involving Johnson as the
complaining party. Id. In Johnson's situation, the application and effect of the
credit for presentence confinement on the minimum term requisite for initial
parole has expired and will not arise again as Johnson serves and completes his
sentence.
"A determination by this Court of the legal issue tendered by the parties is no
longer necessary to compel the result, and could not serve to prevent it."
DeFunis, 416 U.S. at 317, 94 S.Ct. at 1706. We find this case indistinguishable
from DeFunis where the Court concluded that "in no event will the status of
DeFunis now be affected by any view this Court might express on the merits of
this controversy." Id.

Johnson faces the hurdle of establishing that the conduct resulting in the
revocation has a "substantial nexus between such a charge or conduct and the
period of confinement for which credit is sought," Schubert v. People, 698 P.2d
788, 794-95 (Colo.1985), and that the parole violation was not a separate and
independent cause of confinement. Such a potential relationship is speculative
and without effect where Johnson is serving three consecutive sentences, as
discussed infra

The State Department of Corrections granted credit against the maximum

sentence pursuant to the state district court order granting Johnson's motion for
postconviction relief. Subsequently, the Colorado Court of Appeals denied
Johnson a writ of mandamus to enforce the order, holding that the Governor's
two commutations of the sentence divested the state courts of jurisdiction to
modify the sentence. As a result, Johnson argues that a reversal of the federal
district court's grant of habeas relief would leave the Department of Corrections
free to revoke the credit already granted
The State explicitly states that it does not challenge the portion of the federal
district court's order which mandates credit be given for the 463 days towards
the maximum sentence. It further concedes that "[b]ecause the trial court
imposed the largest possible maximum term, it obviously did not credit
petitioner with the 463 days that he spent in presentence confinement against
the maximum term of his sentence." Opening Brief of Appellant at 4. The
denial of credit is the basis of Johnson's constitutional claim that equal
protection is thus denied when time spent in presentence confinement is not
credited against the maximum sentence. There is a body of law, subsequent to
the Supreme Court's decisions in Williams v. Illinois, 399 U.S. 235, 243, 90
S.Ct. 2018, 2023, 26 L.Ed.2d 586 (1970) and Tate v. Short, 401 U.S. 395, 39798, 91 S.Ct. 668, 670-71, 28 L.Ed.2d 130 (1971), which holds, under the Equal
Protection Clause, that an indigent, unable to pay fines or post bail, is entitled
to credit against the maximum sentence for the time spent in presentence
confinement. See e.g., Crowden v. Bowen, 734 F.2d 641, 642 (11th Cir.1984);
Jackson v. State of Alabama, 530 F.2d 1231, 1237 (5th Cir 1976); King v.
Wyrick, 516 F.2d 321, 323 (8th Cir.1975); Hook v. Arizona, 496 F.2d 1172,
1174 (9th Cir.1974); accord Godbold v. Wilson, 518 F.Supp. 1265, 1269
(D.Colo.1981) (citing circuits holding a constitutional right to presentence
credit even where the total sentence is below the maximum); but cf. Matthews
v. Dees, 579 F.2d 929, 931 (5th Cir.1978) (no broad constitutional right to
credit for presentence confinement though pursuant to Williams this right exists
where the offender is subjected to imprisonment beyond the statutory
maximum solely because of indigency); compare Doyle v. Elsea, 658 F.2d 512,
515 (11th Cir.1981) (federal statutory right entitles offender to credit only
against the arrest-related sentence); see also Faye v. Gray, 541 F.2d 665, 66768 (7th Cir.1976) (discusses circuit cases where credit is due regardless of
sentence imposed and where a less than maximum sentence invokes a
presumption of credit). The Colorado Supreme Court has consistently refused
to find a federal constitutional basis entitling the indigent offender to
presentence confinement credit. See People v. Turman, 659 P.2d 1368, 1373-74
(Colo.1983). The Colorado Court has recognized a statutory entitlement to
presentence confinement credit arising from a 1979 amendment to Sec. 16-11306 which requires an award of credit for pretrial detention. Colo.Rev.Stat. Sec.
16-11-306 (1985 cum.supp); see Schubert v. People, 698 P.2d 788, 793

(Colo.1985). Johnson does not qualify for this mandatory credit as the Colorado
Supreme Court has refused to apply the statute retroactively, holding that the
amendment is applicable only if the offense was committed after June 31, 1979.
E.g., Godbold v. District Court, 623 P.2d 862, 864 (Colo.1981) modified on
other grounds, People v. Scott, 626 P.2d 1130 (Colo.1981). We recognize that a
conflict exists between the Colorado Supreme Court's interpretation of
Williams and Tate and some of the derivative holdings of the federal courts of
appeals and the federal district court in Godbold v. Wilson. However, it is not
necessary for us to determine the merits of this issue as it applies to Johnson
because the State has conceded the underlying denial of credit and implemented
a corrective to provide credit against the maximum sentence.
The State's concession and lack of challenge are distinguishable from those
instances where the government which sentenced the offender challenges the
relief ordered by a prior court ruling and reserves its right to revoke such relief
if the appellate review reverses the district court. See Allen v. Hadden, 738
F.2d 1102, 1106 n. 4 (10th Cir.1984); Garafola v. Wilkinson, 721 F.2d 420,
422 n. 1 (3d Cir.1983), cert. denied, 466 U.S. 905, 104 S.Ct. 1681, 80 L.Ed.2d
155 (1984); Lynch v. United States Parole Commission, 768 F.2d 491, 496 (2d
Cir.1985); Gill v. Garrison, 675 F.2d 599, 600 (4th Cir.1982). While, in this
instance, the State's good-faith compliance with the state district court's order
with regard to the maximum sentence is not dispositive of the mootness
question, we cannot ignore this element of the State's representation.